Stopping them in their tracks: Historic preservation districts and railroad easements

              The Historic
Dimension Series
A student publication series by the UNCG Department of Interior Architecture
Stopping Them in Their Tracks:
Historic Districts and Railroad Easements
by Carter Spradling 	 	 	 Spring 2019
According to the
National Park Service,
there are nearly 17,000
National Register Historic Districts spread
across the United States, and a great many
of these are historic downtown districts.
The pattern of city growth and development
throughout the country closely coincides
with the proliferation of the railroad
industry. The Northeast saw great gains in
transport efficiency in the early 19th century
with the railroads fueling the industrial
revolution, and in 1827, the establishment
of the Baltimore and Ohio Railroad became
the first large scale rail passenger service in
the country. From then until the early 20th
century, rail lines were built throughout
the nation at a furious rate. These lines
supported not just the movement of people
to the frontiers, but also goods that would
not normally or cheaply be moved across
vast swaths of open and treacherous terrain.
The United States government itself had
stated goals to support the rail industry,
and did so through numerous pieces of
(sometimes controversial) legislation.
Initially, the federal government began
issuing land deeds to rail companies fee
and simple to encourage and facilitate
expansion. After (justified) complaining
from the American populace, the general
railroad right-of-way act of 1875 was
passed. It states that “[t]he right of way
through the public lands of the United
States is granted to any railroad company”
meeting certain requirements, “to the extent
of one hundred feet on each side of the
central line of said road.” Those rights-of-way
are called easements and are still in
effect today.
This brief will explore the concept of
railroad easements as well as the legal
challenges surrounding them. Potential
solutions and compromises regarding these
challenges will be discussed and evaluated.
Finally, the brief will examine two separate
cases regarding railroad easements in
downtown historic districts in North
Carolina and their solutions.
What is a railroad easement?
Easements are limited interests in real
property held by individuals other than the
principal owner or, more commonly, held
by the government or the public at large.
Most easements are defined by a formal
written document that cannot be revoked,
even if property ownership changes, and
generally “run with the land” until they
expire. A railroad easement does not
grant ownership of property to the railway
company; rather, it protects the company’s
interests regarding land use. Essentially,
the easement states that the railway has
permission to enter and leave one’s property
and that their business-related uses shall
not be infringed upon. Nevertheless, the
landowner still owns the actual ground
below the easement, and generally, the rail
company must do its best to prevent their
activities from damaging the surrounding
property. The convoluted topic of railroad
easements and their associated issues can be
summed up in one word: nebulous!
Historic
preserva-tion
can be
a daunting
task on its
own merits.
Adding in
a factor as
notoriously
intimidating
as railroad
easements
can make a
project seem
all but
impossible.
However,
as we have
seen,
solutions do
exist to
address
these prob-lems.
UNCG The Historic Dimension Series: 2
Fig. 3: The old southern railways lines in Greensboro.
Easements and historic preservation
As discussed, railways were the arteries that carried the
lifeblood of commerce and immigration to all corners of
the country. Where the rail lines were laid, so followed
development. As such, the downtown districts of many
cities have rail lines running directly through them.
Cities themselves are living, breathing entities that
change, sometimes drastically, over time. What might
have been a perfectly acceptable case of encroachment
by the railroad in 1875 could be a very different
situation today. Railroad companies are notoriously
difficult to deal with when it comes to protecting their
real or perceived easement rights. Regarding historic
preservation, these questions present themselves: 1)
what is the fate of unused/abandoned rail lines that
can be eyesores or otherwise bothersome? And 2) if a
historic property exists within a railroad easement, who
has the final say about modification to the property
and surrounding land? Preservation projects can be
difficult and complicated enough on their own without a
participant who is unwilling to negotiate.
What does the law say about railroad easements?
One of the first steps of research when dealing with
railroad easements is to determine the actual dimensions
of the easement and the method of acquisition by the rail
company. Rail companies should have accurate records
regarding the easements they hold, but one may wish
to avoid drawing their attention. As stated previously,
these companies will vigorously defend their easement
rights, whether they have the legal standing to do so
or not. Older surveys of the property should have
railroad easements recorded and can be demarcated by
a new survey if necessary. Depending on the method of
acquisition, easements are generally between 50 and 200
feet wide (25 to 100 feet on either side from the middle
of the track).
Early in North Carolina’s rail history, railway companies
were given the legal rights of eminent domain and
powers of condemnation. If they were to condemn a
property, it became theirs, fee and simple. Luckily,
the late 19th century case of Beach v. Wilmington and
Weldon Railroad set the legal precedent that property
condemned by rail companies would result in nothing
more than a simple easement. In addition, many rail
lines were given permission to use private lands dating
back to the mid 19th century. In many of these cases,
the original documentation has been lost or damaged
beyond usefulness. In some instances, the language
used in the documents is not clear regarding the nature
of the land being given over to railway use.
Given the uncertainty of easement width in many
areas, property owners may assume that their adjacent
property is theirs to do with as they please, without
knowing that their property actually sits within a
right-of-way. Confusion also takes place with owners
who know of an existing easement but fail to realize
that the railroad can have final say over any structure
placed within the easement because they must be
allowed to enter and exit the property and do so without
disruption.
Even when lines are abandoned, the associated
easements still exist. In these cases, should the property
revert to the original owner? If the original documents
regarding the rail company’s use of the land are lost,
damaged, or destroyed, how do we decide who has
rights to the property? It has been the opinion of state
governments and the federal government, that these
easements should remain in place and be used for other
transportation needs. The “Rails to Trails” conservancy
program perhaps reaches a happy median in these cases.
In 1976, The Railroad Revitalization and Regulatory
Reform Act was passed by Congress. This was the first
in a series of bills passed to initiate deregulation of the
transportation industry in the United States. A small
portion of this bill made a huge impact on how unused
rail lines are treated. The idea of “railbanking” was
introduced. Railbanking is essentially an agreement
between the railway company that owns an easement,
the federal government, and a third party that has some
use of the easement. In the cases where railbanking is
approved, the rail company removes all of its property
that does not irreversibly damage the corridor (bridges,
Fig. 2: North Carolina’s railroad network in 1896. Note
the confluence of Greensboro’s multiple lines in the
central region of the state.
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Fig. 4: A rails to trails project converting an unused rail
line into a recreational pathway.
Fig. 5: Historical marker identifying the Saluda Grade.
tunnels, culverts, etc.), and transfers its rights-of-way to
the third party. As part of railbanking, a rail company
must first file to abandon the line, which would transfer
all property rights to the property owner permanently.
This is all subject to the provision that should the rail
company need to re-establish service through that
corridor, the land will be handed back over for rail
service. Since the easement has not been abandoned,
rather just transferred, it remains in effect. The rail line
preserves its long-term rights to the land. The third
party (usually a qualified non-profit or public agency)
gets to put that otherwise unused piece of land to good
use, and what was an eyesore or an inconvenience is
addressed. The only party that seems to truly suffer
is the original land owner, who still does not have
complete control over his or her property.
Nevertheless, the practice of railbanking was dealt a
serious blow in the 2014 court decision, Marvin M.
Brandt Revocable Trust v. United States. In the case, a
land owner in Wyoming took the federal government
to court over an abandoned rail line. The federal
government argued that they had a vested interest in the
easement that had been established, and it represented
more than a mere “right-of-way.” While the court
of appeals initially sided with the government, the
Supreme Court overturned the decision. The court
explained that the Brandt family owned the land, fee
and simple, and that the easement was “subject to those
rights for railroad purposes.” When the rail company
abandoned the line, the easement and its associated
rights were abandoned and the full use and ownership
of the underlying land reverted to the Brandt family.
In writing the dissenting opinion of the court, Justice
Sotomayor claimed that rail rights-of-way represented
“something more” than a mere easement and were not
subject to normal common law practice. She added that
the decision
“undermines the legality of thousands of miles of
former rights of way that the public now enjoys
as means of transportation and recreation. And
lawsuits challenging the conversion of former rails
to recreational trails alone may well cost American
taxpayers hundreds of millions of dollars” (Hansen,
2014).
Rails to Trails
The Rails to Trails Conservancy Program is one of the
major non-profit agencies to make use of the Railroad
Revitalization and Regulatory Reform Act’s railbanking
clause. Established in 1986, the group seeks to make use
of abandoned lines by converting them into hiking and
cycling trails for public use. Since their establishment,
they have helped create over 4,200 miles of rail trails
in every corner of the United States. During the
conversion from railway to trail way, the actual tracks
on the line are removed and the area is resurfaced to
provide appropriate ground cover for the intended
activities (hiking, biking, recreation). Relying solely on
private funding, the group facilitates projects between
municipalities, advocacy groups, private citizens, rail
companies, and the federal government to make use of
otherwise derelict lines.
Given the preponderance of rail lines running through
downtown historic districts, this organization provides
a potentially useful solution to municipalities and
historical preservationists concerned about unused rail
lines and what they mean to those communities.
Saluda, NC
The community of Saluda, NC, is an excellent
example of a town grappling with its rail history and
beautification of its community while making otherwise
unusable land into something the public could use
and enjoy. In 1878, the Saluda Grade was opened
for passenger rail travel between Asheville, NC, and
Spartanburg, SC. The increased traffic through the
area eventually resulted in the establishment of the
town of Saluda (Saluda being the name of a group
of surrounding mountains and the associated river
flowing beneath them). Construction of the rail line
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was an extremely expensive and daunting task. Due
to its position in the Appalachian Mountains, near the
present-day Blue Ridge Trail, the feasibility of running a
line to link Asheville and Spartanburg was questionable
at best. Eventually, private funding for the line dried
up, and laborers were in short supply. The project
seemed doomed until the North Carolina General
Assembly passed legislation providing the funds and
manpower needed to complete the project. The result
was a section of line that rose from 1,081 feet in elevation
to 2,097 feet in very short order (600 feet to the mile),
making it the steepest mainline standard gauge railroad
in the United States.
The current Saluda depot was built in the first
decade of the 20th century to provide rail service to
the surrounding communities. The town of Saluda
had been little more than a few very loosely situated
homesteads before the arrival of the rail line. Following
the economic growth the area experienced from
construction of the depot, the population boomed,
resulting in a vibrant community that grew around
the line. Today, even though it has been relocated
down the street from its original location, the depot is a
contributing structure in the Saluda Main Street Historic
District and now serves as retail space and a railroad
museum.
In 2001, Norfolk Southern, the rail company that owns
the rights to the Saluda Grade, ceased operations
on that section of track. Eventually, in 2003, the
track connections were severed, rendering the lines
inoperable. Nevertheless, in order to protect its
interests, Norfolk Southern continued to maintain the
line to prevent it from being classified as abandoned.
Fallen trees, encroaching vegetation, and washouts make
that an expensive undertaking.
An advocacy group called the Saluda Grade Trail
Committee began efforts to increase awareness
surrounding possibilities for future uses of the now
furloughed rail line. Shortly thereafter, in 2010, the
Saluda Board of Commissioners voiced their support
of the movement. In 2017, the board approved the
decision to move forward with the conversion of the rail
line to a pedestrian and biking trail. According to the
Board of Commissioners, such an action would result
in a multitude of positive consequences for the historic
downtown district and the area at large. The trail
would spur economic activity in the historic downtown
setting by providing more accessibility from within and
outside of the city. It would increase eco-based tourism,
resulting in larger tax revenues. In addition, it would
create a safe, easily accessible space to promote the well-being
of the local residents. The trail would also help
preserve one of the most historically significant stretches
of railroad east of the Mississippi River. Likewise, access
to some of the most scenic views in the country would
be preserved and easily accessible by foot.
Cases like Saluda’s use of the Railroad Revitalization
and Regulatory Reform Act occur all over the country,
though this one seems to be of particular importance
given the historical significance of the rail line and
the natural splendor that surrounds it. This case is a
good example of how communities can partner with
railroads instead of fighting against them to ensure
that everyone’s interests are acknowledged. Although
Norfolk Southern could eventually come back and
demand use of the land again, that seems unlikely given
Fig. 6: Saluda, NC now and then.
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their plans to scuttle the line voluntarily. In the end, the
project brings economic gain, personal physical fitness,
and historical awareness that will ensure the survival
and growth of the Saluda Historic Downtown District.
Greensboro’s Cascade Saloon
Within the downtown historic district of Greensboro,
NC lies the Cascade Saloon (a contributing structure to
the district). Dubbed “The Gate City” for the confluence
of rail lines running through town, Greensboro was
truly the gateway to the south. As a major textile
manufacturing city, Greensboro saw rapid growth in
the early 20th century. The boom in population and
manufacturing ensured that Greensboro experienced
plenty of rail traffic and in 1851, Governor John Motley
Morehead established the North Carolina Railroad in the
city.
Originally a wooden structure situated snuggly
between two railroad tracks, and across the street from
Greensboro’s original rail station, the saloon found
itself in the very heart of Greensboro’s vibrant business
district. Eventually, architect Samuel McCauley
converted the building into a brick structure. The
masonry was built around the wood structure for
two reasons: first, to stop any potential disruption to
business, and second, to avoid having to reapply for a
new liquor license. Luckily, by the time federal laws
regarding rail easements and rights-of-way were in
place, the saloon was well established and grandfathered
into place.
By 1907, the saloon was owned by an African-American
gentleman named Wiley Weaver, who along with
his wife, Ida, operated a café. The couple owned and
operated the saloon until 1922 as the only black owned/
operated business in the neighborhood. The timing
and location of the café is of particular importance.
At a time when Jim Crow and segregation were the
law of the land in the American South, Mr. Weaver
ran his successful business in a mostly white part of
town. There are several potential explanations for the
accepted mixing of the races in Greensboro. First, the
city had a large Quaker population that was staunchly
anti-slavery and anti-racist. Second, many prominent
leaders associated with Greensboro from the time period
favored structured education for the masses, which
likely made the community a bit more forward in its
thinking.
Fast forward to the 2010’s and the Cascade Saloon
building, after being vacant for many, many years,
was in a state of horrid disrepair, such that the city
of Greensboro scheduled it for demolition due to
safety concerns. Given its intriguing and important
contributions to local history, efforts went underway
to save the building. Of great importance to the
preservation project was the fact that the building sat
directly between two very close and very active rail
lines. According to federal law, should the existing
structure be condemned and demolished according to
plan, nothing would be built in its place to maintain and
protect existing rail easements. Greensboro’s historic
downtown district would be left with the eyesore of an
empty gravel lot.
Structural engineers were dubious about the prospect
of saving the building. It was not until representatives
from the Christman Company collaborated with
the advocacy group Preservation Greensboro that a
preservation plan emerged. The first step was for the
city to seize the property through the right of eminent
domain, which would ensure that the property would
not be condemned and eventually destroyed. Although
the North Carolina Railroad Company voiced their
displeasure and threatened legal action, they did not
have the legal standing to do so. The original structure
survived and so did its right to occupy its original
space. Today, the building stands fully refurbished
and sensitively adapted as the regional office of the
Christman Company and once again contributes to
the economic fruitfulness of Greensboro’s downtown
district.
Fig. 7: The Cascade Saloon and downtown Greensboro
as they existed at the turn of the century.
Fig. 8: The newly rehabilitated Cascade Saloon.
Conclusion
In conclusion, historic preservation can be a daunting task on its own merits. Adding in a factor as notoriously intimidating as railroad easements can make a project seem all but impossible. However, as we have seen, solutions do exist to address these problems. To be prudent, the first step in moving forward with your own project should be to access old property surveys or have a new survey performed. Having an accurate survey in hand will be invaluable to ensure an informed decision is made. Changes to a property within a railroad easement should not be performed without first consulting a land use and zoning attorney. Eventually, whether through the railroad company or public/private records, the original conditions of the easement will have to be outlined. The current condition of the track on the easement in question will provide insight to the landowner’s available actions.
Working within the confines of the law, immense planning and preparation, and a mutual respect for the rights afforded to all parties involved will illuminate the path forward. Recent court decisions have stripped some of the power away from railway companies, and as the rail industry continues to change, policy is sure to evolve with it. It is up to preservationists to explore those solutions and to make the best choices to preserve the character of the district and further advance the economic development of the community.
Bibliography
1895 Saloon Restored With Community Partners. (2018, June 26). Retrieved March 26, 2019, from https://preservationgreensboro.org/1895-saloon-restored-with-community-partners/
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Assad, A. (2019, January 10). What Is a Railroad Easement Agreement? Retrieved March 28, 2019, from https://pocketsense.com/railroad-easement-agreement-8512656.html
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Fig. 9: An artist’s rendition of 1900’s downtown Greensboro.
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Fig. 10: Original Southern Railroad station in Greensboro, 1908.Hansen, G. (2017, January 07). Supreme Court Holds That U.S. Government Does Not Have A Reversionary Interest To Abandoned Railroad Right Of Ways Under 1875 Statute. Retrieved March 28, 2019, from https://blog.aklandlaw.com/2014/09/articles/easements/supreme-court-holds-that-us-government-does-not-have-a-reversionary-interest-to-abandoned-railroad-right-of-ways-under-1875-statute/
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Image Credits Fig 1. www.preservationgreensboro.org
Fig 2. www.ncpedia.org
Fig 3. https://archives.ncdcr.gov/
Fig 4. www. Railstotrails.org.
Fig 5. http://www.waymarking.com
Fig 6. www. Historicsaluda.org
Fig 7. https://www.christmanco.com/
Fig 8. https://www.christmanco.com/
Fig 9. www.Greensboro.com
Fig 10. www.Railfan.net
The Historic Dimension Series is a collection of briefs prepared by UNCG students under the direction of Professor Jo Ramsay Leimenstoll. For information on other topics in the series please visit the website at go.uncg.edu/hds
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